Moore v. Moore

Per Curiam.

The order of the general term, which affirmed an order of the special term granting the plaintiff’s application to discontinue this action upon payment by him of the costs, is not re viewable in this court. The action was for a divorce upon the ground of adultery, and was on the circuit calendar when the order of discontinuance was made. The court had before it the moving affidavits and the opposing affidavits made by the defendant and her attorney, and it was upon their consideration, as well as of the pleadings, that the order was granted. Under the circumstances developed, it was within the discretion of the court to grant or tó refuse the plaintiff’s application. It does not ‘appear that there was any violation of any right or interests of the defendant. In fact the granting of the order of discontinuance might be regarded as a concession on the part of the plaintiff that he was unable to prove his case. There was no abuse of the discretion which rested in the court with respect to the application, and it was for it to pronounce upon the terms to be imposed upon the plaintiff as a condition of the discontinuance.

The appeal should be dismissed, with costs.

All concur.